Movement of children between divorced parents (and others)

Until recently, children were not allowed to move between parents throughout the lockdown period, but instead had to stay with whomever they were last with when the lockdown period commenced. This followed the outbreak of the COVID-19 pandemic. The Minister of Social Development has, in terms of amended regulations and directions issued in terms of the Disaster Management Act, 2002 (hereinafter “Amended Regulations”), announced that there is an exception permitting children to move between houses during the lockdown. These Amended Regulations were gazetted on Tuesday, 7 April 2020.

In terms of the Amended Regulations the movement of children is prohibited, except if pre-existing arrangements are in place for a child to move from one parent to another in terms of a court order or parental responsibilities and rights’ agreement / parenting plan, registered with a family advocate, and provided that the house to which the child is moving, there is no person known or reasonably suspected to have contracted COVID-19.

In the case of CD and Another v Department of Social Development (5570/2020) [2020] ZAWCHC 25 (14 April 2020), the Amended Regulations were interpreted in line with the general well-being of the parties concerned. The Applicants applied on an urgent basis to the High Court, Western Cape Division, Cape Town, on 6 April 2020 to dispense with the Regulations published by the Minister of Cooperative Governance and Traditional Affairs, which prohibited the travel of persons between provinces during the lockdown period. The purpose of the application was to allow either the First or the Second Applicant to travel from Cape Town to Bloemfontein, and back, in order to fetch their children from their grandparents’ home. The children initially travelled to Bloemfontein during the school holidays for a brief visit with their grandparents, and were confined to the grandparents’ home when the lockdown period commenced on 26 March 2020. The Applicants are divorced and their divorce order incorporates a consent paper, parenting plan and arrangements for the children to move between the Applicants.

The Respondent opposed the application on the basis that the Amended Regulations do not provide for the movement of children from a caregiver to a parent, or vice versa; the Applicants did not arrange for the children to be moved after the lockdown period was announced, but before it commenced; and lastly, the application was launched on 6 April 2020, long after the lockdown period had commenced, showing a lack of urgency.

Meer J heard the matter on 8 and 9 April 2020 and found that the movement of the children in this specific instance fell within the exception provided in the Amended Regulations since there was a court order with arrangements in place, as per the divorce order, which is one the requirements set out in the Amended Regulations. Therefore, the First Applicant was permitted to travel to Bloemfontein in order to fetch his children and return to Cape Town with them, granted that certain directions, as set out in the relevant judgment, were complied with.

The reasons for the judgment are as follows: The grandparents are caregivers as defined in the Children’s Act, 2005 although not mentioned in the Amended Regulations. Since there is an order containing arrangements for the children to move from one parent to another, the grandparents as caregivers fall within the ambit of the exception contained in the Amended Regulations. Movement of the children between parent and caregiver is an interpretation in line with the Constitution and the best interests of the child, which is of paramount importance in every matter concerning a child. Furthermore, in casu, the grandmother has arthritis that restricts her ability to fully care for the children, hence the need for a short visit. The Applicant is also a doctor and will be able to take all of the healthcare needs of the children into account. Therefore, the application is rightfully brought on an urgent basis and it is in the best interests of all parties concerned that the children be moved from Bloemfontein to the Applicant’s residence.

Furthermore, Meer J briefly commented on the movement of children between parents without a pre-existing court order or parenting plan and stated that an interpretation of the Amended Regulations does not prevent such a court order to be granted in circumstances of urgency. Therefore, if a parent does not have a pre-existing arrangement as is required in terms of the Amended Regulations during the lockdown, this does not preclude a parent to apply to court in cases of urgency for a court order that allows the children to move between parents. This court order will be sufficient even though it did not exist before the lockdown commenced and the Amended Regulations were gazetted.

In conclusion, the movement of children during the lockdown between the households of (divorced) parents are permitted in certain instances. The first instance is that the parties’ situation meets the requirements as is set out in the Amended Regulations. The second instance is that children can move between the household of a caregiver and a parent if the circumstances deem it to be the best interests of the parties concerned and a matter of urgency (as in line with case law). Lastly, if no pre-existing arrangement exists in order to allow for the movement of children between the households of parents, yet the circumstances deem the movement of the children necessary, a parent may apply to court on an urgent basis in order to receive a court order allowing such movement. For more information on this topic kindly contact our offices.

Pieter Walters

Cell: 082 858 3817

Email: pieter@nvsinc.co.za

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)